F. A. Cocke Live Stock Co. v. Adams

STATEMENT OF CASE.

OGLESBY, J.

The plaintiff, F. A. Cocke Live Stock Co., Inc., of Natchez, Miss., brings this suit against F. J. Adams, of 'Concordia parish, La., based upon two promissory notes, one for $343.50, dated October' 17, 1922, and one for $444.36, dated one day later, both of which are paraphed “ne varietur” to identify them with an act of chattel mortgage passed before L. C. Marsh, justice of the peace and ex-officio notary public of Adams county, Miss., October 18, 1922. The plaintiff seeks recognition of the privilege flowing from ■said chattel mortgage on the property described therein, as well as a vendor’s lien and privilege on three certain mules described therein.

Defendant admits signing the note for .$343.50, and admits signing the chattel mortgage in blank, but denies signing the note for $444.36, and alleges that the signature is a forgery. He also files a reconventional demand for $942.00.

There was judgment for plaintiff for only $343.50, and a rejection of his demands for the $444.36 note and his lien and privilege, and a dismissal of the sequestration. From, this judgment plaintiff has appealed, and, defendant has answered the appeal, and urged that the case be remanded for testimony on his reconventional demand.

OPINION.

We gather from the record that about February, 1920, the plaintiff sold the defendant three mules, and in 1922 he owed plaintiff a balance of $400.00. Plaintiff had taken a contract to build a gravel road from Washington to Leesdale, Miss., in Adams county, and on August 23, 1922, sub-contracted one-half a mile to the defendant, for which he agreed to pay 16c per cubic yard-for all dirt work and $1.00 per yard for graveling the same. It was agreed that the work should be done according to the specifications contained in Cocke’s contract, and both agreed to take the estimate of the Adams county engineer as a basis of settlement.

On or about October .17, 1922, the work having been completed, a settlement was made, and it was found that Adams had come out in debt on the work $444.36, and still owed a balance of $343.50 on the old debt, making a total of $787.86. The two notes represent the two amounts.

Cocke says that on October 17, when they had the settlement,- Adams signed the chattel mortgage and the two notes which had been prepared by Mr. T'urnipseed, his bookkeeper, and promised to go to Vidalia and borrow enough money to take up the $444.36 note, with the understanding that if he was successful in getting the money the note would be given back to him. He says that Adams came back that night and reported that he had failed to get the money; that he might get it if he could take the property on which Cocke had a first mortgage over into Louisiana; that the next day he and Adams, accompanied by Turnipseed, drove to Washington to appear before Mr. Marsh, justice and notary, for the purpose of acknowledging the instruments which -.had been signed by them on the preceding day; that Adams was asked by Marsh, in his and Turnipseed’s presence, if he had signed the mortgage and notes, to which he said, “yes.” Mr. Cocke is corroborated by both Marsh and Turnipseed, with slight discrepancies. Turnipseed says it was on the afternoon, and Cocke and Marsh both say it was before the noon hour. Cocke, Turnipseed and Patton, the two latter being the witnesses to the chattel mortgage, all say that the mortgage was completely filled out when it was signed. Adams says he signed the note for $343.50 on October 17, and signed the mortgage in blank because they didn’t have a description of the property at the camp, Mr. Cocke saying that he would get it from the old one which he had in his office at Natchez, and put it in; that he loaded up his camping outfit, his tools, etc., in wagons, on the morning of the 18th, and started over to the Louisiana side, and as he came to Fenwick, Mr. Cocke’s camp, he, Cocke, Duvall Henderson (during the trial he changed the name to Henderson Chase, page 61), and his son, Luther Adams, got in a car and went to Washington; that Cocke got out of the car and went into a store, and after a short stay came out and said everything' was O. K. This evidently had reference to the acknowledgment. Says he didn’t see the notary, much less acknowledge anything before him, Adams is corroborated by his son, Luther Adams, and both say that Turnip-seed was not there. Henderson Chase says he drove the three to Washington on one occasion, but that it was a common thing, and he didn’t remember much about it.

Both notes are in evidence. The one for $343.50, not disputed, is witnessed by John C. Turnipseed and Bryant Patton, the same persons who witnessed the chattel mortgage. The other note is not witnessed at all. It is dated the 18th, but CoCke and his witnesses say it was executed at the same time the other was. There is some difference between the genuine and the disputed signature. In the disputed one, the “E,” and “J” are different" from all the other initials in the record,- and in spelling “Adams” a double “Á” is used, thus: “Aadams.” The signature on the back of the note is different from the one in front, and likewise different from the admitted signature. It is hard to reconcile the difference. We are not favored with a written opinion from the trial judge, and, of course, do not know what oral reasons he gave for disallowing this disputed note, but, under the circumstance's, we are not prepared to say that he erred on a question of fact. He was in a better position to judge the credibility of witnesses than we are, and for that reason we prefer to leave his finding on that issue undisturbed.

The other question of fact relative to the delivery of the mules at Vidalia, the judge found that the delivery was made at Natchez, and not at Vidalia. In that finding there is no manifest error. It is simply giving credence to the testimony of witnesses, and he was in a better position to say which was to be believed than we are.

On the reconventional demand the trial judge would not permit any proof over 'plaintiff’s objection that the contract was the best evidence, and not being ambiguous needed no explanation. We think he was right in his ruling. Defendant, in his reconvention, claimed under the' contract, and of course is bound by the contract. It is true that he alleges in his reconventional demand that there was a subsequent oral agreement by which Adams was to construct 300 feet of road in addition to the half-mile named in the contract, and proof of that character would have been admissible, but the questions asked and ruled on dealt. solely with the contract and an interpretation of the same. The judge held, and very correctly, that the contract needed no explanation; that it explained itself. Besides, the testimony of the engineer shows that Cocke got paid for exactly what Adams got paid for, that is, the estimate of the engineer.

We find no grounds for either reversing or amending the judgment of the District Court, and it is therefore affirmed.

(CROW, J., being absent, takes no part.)